Guardianship

Providing Guardianship For Your Loved Ones

There may come a time where you will face caring for a loved one who cannot care for himself or herself. That loved one may be seriously ill and confined to a hospital bed, or may be mentally incapacitated and may need chronic care at home or in a skilled nursing home.

Because your loved one has such physical or mental challenges, he or she can no longer make the proper personal health care, financial or property decisions. In such cases, often your best next step is obtaining a guardianship for that person, especially if he or she does not have an appropriate power of attorney (POA) or health care proxy in place prior to incapacity. The attorneys at Rubinstein, Zeh and Associates can help you and your family avoid a guardianship with proper estate planning. If your loved one is already incapacitated, our estate planning and elder law attorneys can help you and your family with a guardianship proceeding for an incapacitated loved one, ensuring that precious family member is well-protected. Like wills and trusts, guardianships are also legal documents that can enable you to secure your wishes, even after you are gone. The legal requirements of each state can vary, so it’s essential that your guardianship is drafted and executed by an experienced guardianship attorney. Our attorneys are not only trained in handling simple estate guardianship matters, we take care of complex estate litigation and guardianship litigation in the event of litigation with a guardianship proceeding in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.

If your loved one can no longer take care of himself or herself, protect him or her with a guardianship.

Call: 1-800-960-1529.

We Can Help You Establish Guardianship.

What Is An ‘Article 81’ Proceeding?

To establish guardianship, you go through a process known as an “Article 81” proceeding. We can represent your interests in this proceeding, whether someone is contesting the guardianship or not.
The guardian of your loved can be almost any person that you wish; he or she could be another trusted family member or a disinterested but trustworthy third party.

Guardians and Conservators

The traditional distinction between guardians and conservators is as follows:

Guardians – A guardianship is a legal right given to a person to be responsible for the food, health care, housing, and other necessities of a person deemed fully or partially incapable of providing these necessities for himself or herself.

Conservators – A conservatorship is a legal right given to a person to be responsible for the assets and finances of a person deemed fully or partially incapable of providing these necessities for himself or herself.

In some jurisdictions, a guardianship may be referred to as a “conservatorship of the person” or by some similar name, or there may be a type of guardianship position which subsumes many of the tasks of the conservator.
Under most circumstances where a person requires a legal guardian, the person’s incapacity will also impair his or her ability to manage financial matters. Thus, petitions for guardianship are often brought at the same time as petitions for conservatorship, and all associated proceedings are combined. To avoid having to go through

When Is A Guardian Required for an Adult?

It may be necessary to petition a court to appoint a legal guardian for persons:

Who have a physical or mental problem that prevents them from taking care of their own basic needs;

Who as a result are in danger of substantial harm; and

Who have no person already legally authorized to assume responsibility for them.

Under some circumstances, it may be necessary for a court to appoint an emergency guardian, who can act on your behalf during a crisis (such as immediately following a car accident) until you regain your ability to make your own decisions.

How is a Guardian Appointed?

The precise procedure will vary to some degree from jurisdiction to jurisdiction. The typical steps are as follows:

The person seeking the appointment of a guardian files a petition with the probate court for the jurisdiction where the allegedly legally incapacitated person resides. This petitioner is often a relative, an administrator for a nursing home or health care facility, or other interested person. A petition is ordinarily accompanied by medical affidavits or other sworn statements which evidence the person’s incapacity, and either identifies the person or persons who desire to be named guardian or requests the appointment of a public guardian.

The court arranges for any necessary evaluation of the allegedly legally incapacitated person. Often, this will involve the appointment of a “guardian ad litem”, a person who is appointed to provide an independent report to the court on behalf of the allegedly legally incapacitated person. If appointed, the guardian ad litem will meet with the allegedly incapacitated person, inform that person of his or her legal rights, and report back to the court on the person’s wishes. The guardian ad litem may also speak to the petitioner, to health care providers, and to other interested individuals in order to provide the court with full information about the allegedly incapacitated person’s condition and prognosis. Depending upon state law, the court may appoint a doctor or professional to examine the allegedly incapacitated person.

If the allegedly incapacitated person contests the appointment of a guardian, a trial is scheduled during which sworn testimony will be given, and at the conclusion of which the judge will decide if the petitioner met the requisite burden of proof for the appointment of a guardian. The allegedly incapacitated person is ordinarily entitled to appointed counsel, if unable to afford a private attorney.

If the allegedly incapacitated person consents to the petition, or is unable to respond to inquiries due to disability, the court will hold a hearing at which witnesses will provide sworn testimony to support the allegations in the petition. If the evidentiary basis is deemed sufficient, the guardian will be appointed.

If a guardian is appointed, the judge will issue the guardian legal documents (often called “letters of authority”) permitting the guardian to act on behalf of the legally incapacitated person.

What Are a Guardian’s Duties?

The guardian makes decisions about how the person lives, including their residence, health care, food, and social activity. The guardian is supposed to consider the wishes of the incapacitated person, as well as their previously established valued, when making these living decisions. The guardian is intended to monitor the legally incapacitated person, to make sure that the person lives in the most appropriate, least restrictive environment possible, with appropriate food, clothing, social opportunities, and medical care.
A guardian may be required to post a bond, unless the requirement is waived by the court. In most jurisdictions where bond is required, waivers are routine.

The Purpose of Court Supervision

The court supervises the guardian’s choices on behalf of the ward. After the initial appointment of a guardian, an initial review is usually scheduled, followed by annual reports by the guardian to the court. The purpose of this supervision is to ensure that the legally incapacitated person is in fact benefiting from the most appropriate, least restrictive living environment possible, with appropriate food, clothing, social opportunities, and medical care.

How Can a Guardianship Be Ended?

A guardianship can be terminated by the court which created it. This ordinarily happens if the legally incapacitated person recovers from the incapacity that necessitated the guardianship. A particular guardian’s role may be terminated by the court or by resignation, in which case the court will ordinarily appoint a successor guardian to take over management of the legally incapacitated person’s affairs. A guardianship also ends upon the death of the legally incapacitated person.

What About Co-Guardians?

Sometimes, relatives of a legally incapacitated person will request that they be made co-guardians for that person. If this is done, depending upon the laws of the jurisdiction and the terms of the appointment, it may be necessary for both co-guardians to approve any decision made on behalf of the legally incapacitated person. This can create needless delay in the administration of emergency care, and can create difficulty in establishing authority for even minor decisions. Thus, it is usually advisable not to have co-guardians, but instead to name a single guardian, perhaps with the other relative named as a successor guardian.

Avoiding Guardianship

It is possible to avoid the necessity of a guardianship through proper estate planning. A good estate plan will include a medical power of attorney which will enable a trusted individual to make health care decisions for you in the event of incapacity, and a general durable power of attorney to permit a trusted individual to manage your personal affairs. To a considerable extent, those documents can specify how you wish to live, and how you wish to be treated, in the event of disability whereas a court or guardian may make decisions with which you would disagree. In most cases, when these documents have been executed in accord with the laws of your state, it will not be necessary for your loved ones to seek the appointment of a guardian or conservator should the event arise. We understand how difficult the incapacity of a loved one can be for all of your family members. The law firm of Rubinstein, Zeh and associates is there for you and your family to help navigate a clear path through the guardianship proceeding during this tumultuous and emotionally taxing and difficult time.

The best way to avoid a guardianship is with the ancillary documents that we provide with our revocable living trust . This will avoid any confusion later on in life if you are ever in a position of temporary or permanent incapacity. The attorney’s at the law office of Castiglia-Rubinstein can put together an estate plan to protect you and your families assets. Call the law offices of Castiglia-Rubinstein at 631-465-0444.
We are dedicated to your success — so contact us. Speak with one of our knowledgeable Long Island Elder Law and Guardianship Proceeding litigation, estate planning litigation attorneys today from wherever you are in New York in Nassau and Suffolk, Brooklyn, Kings and Queens Counties, on Long Island and all New York City boroughs including Bronx, Westchester, Richmond County, and Manhattan. Call 631-465-0444 today.

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Be prepared if a loved is going into a nursing home or already resides in a nursing home.
You should know you have certain legal rights and must be very selective of the Lawyer or Law Firm that you chose to represent you.

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